Author: Ophelia Benson

This is an extract from From Fatwa to Jihad, Atlantic, published April 2.

The argument against offensive speech is the modern secularized version of the old idea of blasphemy, reinventing the sacred for a godless age. Until the abolition of the offence in 2008, blasphemy was committed in British law if there was published ‘any writing concerning God or Christ, the Christian religion, the Bible, or some sacred subject using words which are scurrilous, abusive or offensive, and which tend to vilify the Christian religion’. The origins of the law go back a millennium. After the Norman Conquest of 1066 two orders of courts were established.

Church courts decided all ecclesiastical cases, under the guidance of canon law, which legislated on moral offences. The civil or king’s courts were concerned with offences against the person or property. In 1401 King Henry IV’s statute De heretico comburendo empowered bishops to arrest and imprison suspected heretics, including ‘all preachers of heresy, all school masters infected with heresy and all owners and writers of heretical books’. If a heretic refused to abjure, or if he later relapsed, he could be ‘handed over to the civil officers, to be taken to a high place before the people and there to be burnt, so that their punishment might strike fear into the hearts of others’.

Despite the concern with God and Christianity, the outlawing of
blasphemy was less about defending the dignity of the divine than
protecting the sanctity of the state. In 1676 John Taylor was convicted
of blasphemy for saying that Jesus Christ was a ‘bastard’ and a ‘whoremaker’ and that religion was a ‘cheat’. ‘That such kind of wicked and blasphemous words were not only an offence against God and religion’, observed the Lord Chief Justice, Sir Matthew Hale, in front of whom Taylor was tried, ‘but a crime against the laws, States and Government; and therefore punishable in this court; that to say religion is a cheat, is to dissolve all those obligations whereby civil societies are preserved; and Christianity being parcel of the laws of England, therefore to reproach the Christian religion is to speak in subversion of the law.’

Any challenge to Christian doctrine was, in other words, also a challenge to the secular social order. The heresy that troubled Lord Chief Justice Hale was the kind of heresy that promoted ‘subversion of the law’, the kind of dissent that might unstitch civil society. The outlawing of blasphemy was therefore a necessary defence of traditional political authority.

Four hundred years after Taylor’s conviction, Lord Denning, perhaps
Britain’s most important judge of the twentieth century, made, in 1949,
much the same point about the relationship between blasphemy and
social disorder, though he drew the opposite conclusion about the
necessity of the law. Historically, he observed, ‘The reason for this law
was because it was thought that a denial of Christianity was liable to
shake the fabric of society, which was itself founded on Christian
religion.’ But, Denning added, ‘There is no such danger in society now
and the offence of blasphemy is a dead letter.’

Not only had Christianity become unwoven from the nation’s social
fabric, but over the next half-century other faiths and cultures wove
themselves in. The multicultural transformation of Britain made even
less plausible the traditional arguments for the blasphemy law. In
1985, three years before the Rushdie affair, the Law Commission, an
independent statutory body charged with reviewing the law and
recommending changes, published a report on blasphemy entitled
Offences against Religion and Public Worship. ‘In the circumstances now prevailing in this country,’ the Commission argued, ‘the limitation of protection to Christianity and, it would seem, the tenets of the Church of England, could not be justified.’ It should be abolished ‘without replacement’.

But if the reweaving of Britain’s social fabric provided an argument
for the abolition of the blasphemy law, it also provided a reason, in
some people’s minds, for its refashioning into a new offence that
embraced non-Christian faiths and cultures. ‘A significant number of
lawyers, clergymen and laymen’, wrote Richard Webster in A Brief History of Blasphemy, a book that came out a year after the Satanic Verses controversy and was highly critical of Rushdie and his supporters, ‘have begun to take the view that some protection of people’s religious feelings is necessary not primarily for religious or spiritual reasons but in the interests of social harmony.’

One such figure was Lord Scarman. Two years before he wrote his famous report on the Brixton riots, he was one of the Law Lords who presided over the last great blasphemy trial in Britain. In 1977 Mary Whitehouse, founder of the pro-censorship National Viewers’ and Listeners’ Association, and a doughty defender of ‘public morality’, had brought a private prosecution for blasphemous libel against the newspaper Gay News. It had published a poem by James Kirkup called ‘The Love that Dares to Speak its Name’, about the love of a centurion for Jesus Christ at the crucifixion. Whitehouse won the case and Gay News appealed against the conviction.

In 1979 the case finally came to the House of Lords, the highest
appeal court in Britain. The Law Lords, one of whom was Lord Scarman,
upheld the original verdict. ‘I do not subscribe to the view that the
common law offence of blasphemous libel serves no useful purpose in
the modern law,’ Scarman wrote in his judgement. But such a law must
be extended ‘to protect the religious beliefs and feelings of non-
Christians’. Blasphemy ‘belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, ridicule and contempt.’

In 1985 the Law Commission looked into this and rejected such an
extension, arguing that the deficiencies of the law ‘are so serious and
so fundamental that . . . no measure short of abolition would be adequate to deal with these deficiencies’. The Commission dismissed the idea that religion should have special protection, observing that ‘Reverence for God . . . does not differ fundamentally in character from reverence accorded to any person against whom those according respect are unwilling to entertain grounds of criticism.’

Anticipating the arguments of Rushdie’s critics that there is a difference between legitimate criticism and unacceptable abuse, the Law Commission pointed out that ‘one person’s incisive comment (and indeed seemingly innocuous comment) may be another’s “blasphemy” and to forbid the use of the strongest language in relation, for example, to practices which some may rightly regard as not in the best interests of society as a whole would, it seems to us, be altogether unacceptable’. In other words, the way of saying
something is part of what is said. To say that you must write differently
is in practice to say that you must write about different things.

The Law Commission inquiry was, however, far from united in its
view. Two of the five members appended a Note of Dissent to the majority report. The dissenters were particularly influenced by an outside working party that had insisted that some legal constraints were necessary for the protection of social harmony. ‘If scurrilous attacks on religious beliefs go unpunished by law,’ the working party suggested, ‘they could embitter strongly held feelings within substantial groups of people, could destroy working relationships between different groups, and where religion and race are intimately bound together could deepen the tensions that already are a disturbing feature in some parts of this country.’ The Note of Dissent proposed the replacement of blasphemy by a new offence that recognized ‘the duty on our citizens, in our society of different races and people of different faiths and of no faith, not purposely to insult or outrage the religious feelings of others’.

In the end both the majority and minority views came to fruition.
The blasphemy law was finally repealed in 2008. But it had already been replaced by a number of laws that secularized the offence of blasphemy.

Two years before the blasphemy law was abolished, parliament had passed the Racial and Religious Hatred Act, which made it an offence to incite hatred against a person on the grounds of their religion. The aim was to extend to Muslims, and other faith groups, the same protection that racial groups, including Sikhs and Jews, possessed under Britain’s various Race Relations Acts. In fact, it was already an offence to perpetrate hate speech. In 1998 the Public Order Act had been amended to make it an offence to ‘display any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress’.

Such hate speech laws are now widespread. France, Germany, Canada, New Zealand, Ireland, Sweden, Norway, Brazil and South Africa are among the many nations that ban, in one way or other, and in one context or other, speech that is offensive or incites hatred. Some of these bans are very wide-ranging. Sweden defines hate speech as
statements that threaten or ‘express disrespect’. Canada prohibits the
incitement of hatred against any ‘identifiable group’. In Australia, the
state of Victoria prohibits speech ‘that incites hatred against or serious
contempt for, or involves revulsion or severe ridicule of another on the
grounds of his race or religious beliefs’. Israel bans speech that ‘hurts
religious feelings’. In Holland it is a criminal offence deliberately to
insult a particular group. Germany bans speech that ‘violates the dignity of or maliciously degrades or defames’ a group. In each case the law defines hate speech in a different way. But what is common is the use of the law to expand the boundaries of hate speech.

What is being created through such laws is a new secular notion of
the sacred. The French sociologist Émile Durkheim pointed out that
the most significant aspect of a religion was not the worshipping of a
deity but the carving out of a sacred sphere, a social space that was set apart and protected from being defiled. Traditionally, the sacred was a means by which to ensure that certain institutions, beliefs and practices could not be publicly challenged. Blasphemy laws were simply the most visible of such means. In today’s more secular age, it is culture and identity, rather than simply religion and God, that the law seeks to protect from public assault. Even laws that ostensibly protect faith – such as Britain’s Racial and Religious Hatred Act – are framed in terms of protecting a community’s culture and identity. In today’s world, identity is God, in more ways than one.

Kenan Malik